THE ICFAI UNIVERSITY, DEHRADUN

FACULTY OF LAW

ASSIGNMENT OF MUSLIM LAW

ON
TOPIC- WILL AND ITS INGREDIENTS

SUBMITTED BY: - SUBMITTED TO:-

ADARSH MEHER MONIKA KOTHIYAL
BBA-LL.B (Hons.)
2nd YEAR
SECTION – B
18FLICDDN01063
DEFINITION

Prior to the devolution of the estate of the deceased who are subject to Islamic laws, it must
be satisfied that his funeral expenses and debts are fully paid.

Only one-third of the estate of a deceased person who in his lifetime is subject to the Islamic
laws can be disposed of by a will, the remainder being two-thirds shall be distributed among
his heirs.

The limitation imposed on the testator who is subject to Islamic law in the disposition of his
estate by a Will does not apply where he is exercising the alternative mode of disposition of
estate which is an inter vivos disposition. A situation where in his lifetime he makes a gift of
a part of his estate or the entire estate.
The Holy Prophet, Mohammed (SAW) had in his teachings on inheritance and succession
admonished that testamentary powers should not be wielded in a matter to hurt the rightful
heirs of the testator.

Wills under the Islamic law traced its basis and guidelines from the holy Koran (Quran),
therefore, the making of a Will is a divine mandate and the Will itself ought to be made with
the purest of heart. It affords the testator the opportunity to make provisions for his heirs and
dependents. It is also a way of fending for the poor and rewarding deserving friends and
servants.

MEANING OF WILL

A Will is a legally enforceable instrument which is revocable in the lifetime of the maker,
where he states how his estate will be distributed upon his demise. It is the transfer of an
interest in a property by an owner which shall take effect on his death. See also the definition
proffered by Section 2 of the India Succession Act.

The maker of a Will as earlier highlighted is called a Testator (Testatrix for females) or
“musi” and the person who will benefit from the Will is called the Beneficiary/Legatee or
“musiliah”. The executors of a will are persons appointed in the will to enforce the will and
they are called “Wasi”.

ESSENTIAL INGREDIENTS OF A WILL UNDER THE ISLAMIC LAW.

1. The Testator must possess the full capacity to make a Will.

2. For a Will to be valid the maker must be an adult under the law and of a sound
disposing mind.
3. The property being disposed of by a will must be the property of the testator before
his demise.
4. The beneficiary must not be under any limitation that is capable of making him unable
to receive under the Will.
5. There must be an express or implied acceptance of the bequeathed property by the
beneficiary.
6. A bequest made to a person who is not an heir or a Muslim is valid even with the
affirmation of the heirs of the testator unless such bequest is in excess of one-third of the
 estate of the Testator. Unless a contrary intention is expressed, a bequest made to more
than one beneficiary shall be held in equal proportion by the beneficiaries.
7. Where a bequest is made to two (2) beneficiaries and one (1) dies before taking the
bequest, the surviving beneficiary shall take the entire property.
8. The consent of other heirs is mandatory for a bequest made to an heir to be valid even
where the bequest is within one-third of the estate.
9. Under by a release from the creditors, the bequest made by a testator who is in debt is
not valid to the extent of the debt.
10. Once the funeral cost is defrayed, a testator can validly dispose of the entirety of his
estate by will where he does not have an heir.
11. A bequest made in favour of an unborn child that did not proceed from the womb
within six (6) months is void.

FORMALITIES TO BE OBSERVED IN THE MAKING OF A WILL

Wills under the Islamic laws are not subject to strict formalities unlike the making of a Will
under the conventional laws regulating the making of Wills example is the Wills Act of
1837 which was extended to former colonies of Great Britain as a Statute of General
Application.

Wills under the Islamic law may be oral or reduced into writing what is relevant is the
unequivocal intendment of the maker of the Will. The courts had upheld a Will which was in
writing but not signed or attested to as validly made. The case of Ramjilal v. Ahmed AIR
1952 MB 56 is instructive on the aforementioned principle guiding the formality of a will
under the Islamic law.

In fact, the court in what may be referred to extreme scenarios upheld a letter and nodding of
the head as a valid bequest. In any case, where a will is not formally made, the evidential
burden is wholly on the person seeking to establish the making of a Will to prove that a Will
was made.

SUBJECT MATTER OF A WILL

Any form of property i.e a movable or immovable property and even chooses in action can be
subject of testamentary disposition. What is material to the making of a Will is that the
property must be in existence and the requisite title vested in the Testator at the time of
making the Will.

VOID BEQUESTS
There are two (2) operative circumstances that a bequest must be mirrored in other determine
whether it is validly made. These circumstances are:

1. The beneficiary to whom the bequest is made.

2. The status of the property sought to be bequeathed.

THE BENEFICIARY

1. Bequests made to an Heir: While the Shia Sect in Islam permits a Testator to make a
disposition of his estate to an Heir without the consent of other Heirs provided the
bequest does not exceed one-third of the entire estate of the Testator.
The Sunni Sect in Islam has a different approach all disposition  made to an Heir must
be with the consent of other Heirs otherwise such disposition will be invalid,
consequently the bequest will fall to residuary of the entire estate.
2. A bequest made to the Testator’s Murderer: The law appears to be universal that the
law shall not permit a person to reap the fruits of his crime especially where the crime
was intentionally committed.
The Sunni Sect, a person who causes the death of the testator cannot benefit or inherit
from his estate. It is immaterial whether the death was intended or not. But this principle
is only applicable to the Shia Sect where it is shown that the murderer seeking to benefit
from the estate of the Testator intended the death of the Testator.
3. Bequest to an unborn child: While the Shia Sect in Islam permits the duration of ten
(10) months, a bequest made too an unborn child shall be invalid unless the child was
born within six (6) months of the Will.

THE PROPERTY
One-third of the property: As a central principle, the entire Islamic sect to the exclusion of
Ithana Ashari prohibits the right of a testator from bequeathing more than one-third of his
estate.
However, where the Heirs consent to such bequest by the Testator it shall be valid. The estate
must be known at the time of bequest and the title fully vested in the Testator for the bequest
to be valid.

Unless a testator expressed a contrary intention in the Will, if a beneficiary predeceases him,
the bequest made in favour of the deceased beneficiary shall fall to the residuary estate of the
Testator except in the case of two (2) beneficiaries, the surviving beneficiary shall become
the sole beneficiary of the property under the will.

THE REVOCABILITY OF A WILL

The right to revoke a will is a personal right which can be solely exercised by the testator and
all the schools of thought in Islam and the conventional laws accords recognition to this right
of a testator. The act of revocation can be express or implied.

1. Express Revocation: This can be an oral or written declaration made by the testator.
2. Implied Revocation: In this scenario, the conduct of the testator is to be inquired into
to ascertain whether he has revoked the will or the any of the disposition in it.

In both instance of revocation above the operative principle is that the Testator must exhibit
animus revocandi which is the Latin maxim for the intention to revoke which the testator
must demonstrate.

Where there is a form of sickness a person is suffering from he can make disposition of his
property provided there is a serious apprehension about his death. This is akin to the English
doctrine Donatio Mortis Causa, gifts or bequests made in contemplated of death.

Notwithstanding its recognition under the Islamic law, the bequest in this circumstance must
not exceed one-third of the property of the testator.

Where the testator intends to make a gift of his property for the purpose of advancing the
cause of humanity through Islam (Wakf) such wakf must not exceed one-third of his estate.
Again the bequest must be with the consent of his heirs if the beneficiary is an heir.
ACKNOWLEDGMENT OF DEBT

It is a known and commendable practice under Islam for a person to acknowledge his
indebtedness in his lifetime. Where such a declaration or acknowledgment is made, the
Testator and his Heirs are liable to the creditors. This obviously is the basis of offsetting the
indebtedness of a deceased-testator before the beneficiary can claim from the will.

CONCLUSION

The concept of a Will under the Islamic law as discussed above is an extensive topic which
cannot be fully discussed as there are other schools of thought and divergent views pertaining
to the making of will generally and under Islam.

While extolling the relevance of making a will generally and recognition of same in the
Islamic faith, it is observed that the Koran is the foundation and guideline of making a will as
well as the distribution of the estate in the event of intestacy.

However, there is need to set some accepted standard pertaining to the formality of a will in
other to be able to easily and speedily prove the existence or the extent of a Will as oral
evidence in the case of an oral will is fraught with the obvious danger that it be easily denied
by a party who is not satisfied with the bequest made to him.